Lawsuits Drive Training and Policy

Lawsuits Drive Training and Policy

By Chief Joel F. Shults, Ed.D

The professionalization of law enforcement became solidified in the 1970s when U.S. states developed certification standards for police officers. Some were active before then and some states took longer. The minimum academy training hours vary widely with standards for hiring generally up to each individual agency.

The reason for the disparity is that law enforcement is that policing is best delivered at the local level (at least in this writer’s opinion). Despite calls for national standards, the federalization of law enforcement pushes against the 10th Amendment which wisely holds that “any powers that are not specifically given to the federal government, nor withheld from the states, are reserved to those respective states, or to the people at large.”

As much as any other reform effort, lawsuits against police agencies have pushed increased training standards. The doctrine of sovereign immunity long protected governments from being sued, but that fell when the post-Civil War 14th Amendment and accompanying laws were passed to preserve protections of civil rights from state and local governments. The 14th Amendment provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Additional enabling federal legislation makes such deprivation both a criminal offense and gives the right to citizens to sue for damages for such violations of any federally enumerated right or privilege.

It wasn’t until nearly a century after the passage of these laws that the U.S. Supreme Court began applying the laws to state and local law enforcement and other government agencies, severely limiting sovereign immunity.

Since the 5th Amendment states that no person shall “be deprived of life, liberty, or property, without due process of law”, a person denied that right may sue in federal court for monetary damages or for an injunction to order a police agency to cease any policy or practice causing such a denial. This may be in addition to federal prosecution for the criminal act of deprivation of rights.

In practice, most plaintiffs file actions against law enforcement most frequently in cases of allegations of unlawful use of force, among other things. In state court, plaintiffs can sue for various torts as well. A lawsuit may be against an individual officer or against an entire agency. These lawsuits may allege intentional acts of an officer, or, more commonly, that the officer or agency acted negligently.

Since most police officers lack the assets to be a profitable target for lawsuits, plaintiffs aim at the agency because that’s where the money is. Lawsuits in federal court are preferred because awards tend to be larger, and attorney fees are paid separately rather than through a percentage of the judgment.

While agencies can avoid suit if an individual’s actions are so far outside their “scope of employment” police departments can be deemed negligent if they have policies or practices that fail to protect the rights of citizens to be free from misconduct, or from officers who frequently engage in misconduct and are still retained or uncorrected. Failing to have adequate policies or training are the primary targets of allegations of negligence. It is important to note that what an agency actually does is its de facto policy. For example, if a department’s policy prohibits officers from driving more than 10 miles per hour over the speed limit when responding to emergencies, but everybody knows that officers routinely drive much faster, the real policy is that anything goes. If someone is injured as a result of failing to have an enforced policy, the agency will pay. Commonly, the agency will pay to avoid the cost of litigation before a jury hears the case to determine actual culpability.

While there are frivolous lawsuits, out-of-court settlements that capitulate to weak allegations, and judicial overreach, citizen access to the courts helps regulate police behavior.